June 11, 2018
Group That Filed Algae Lawsuit Seeks Comprehensive Cleanup Strategy
By Tom Henry
The group that forced the state of Ohio into finally acknowledging that chronically fouled western Lake Erie is indeed an impaired body of water has filed a motion in federal court seeking what is widely considered as the most comprehensive — and potentially costly — cleanup strategy.
The Environmental Law & Policy Center, which is based in Chicago and has satellite offices in other parts of the Midwest, said in its filing on Friday that nothing short of a Total Maximum Daily Load program — usually referred to as a TMDL — is legally acceptable for western Lake Erie now because of provisions spelled out in the federal Clean Water Act once a body of water has been designated as impaired.
Under a TMDL, the Ohio Environmental Protection Agency would be required to calculate the total pollution load — in this case, algae-forming phosphorus — that is acceptable for western Lake Erie and put sources of that nutrient — mostly farms — on a so-called “pollution diet.” That would mean a time-consuming fingerprint analysis, and a firm cap on how much phosphorus can come off each tract of land — with strict penalties for non-compliance.
The Kasich administration first resisted calls for the impairment designation on behalf of the state’s powerful agricultural lobby, claiming it would lead to unnecessary litigation that could hamper efforts for reducing algae more than sticking to voluntary incentives and getting widespread cooperation from farmers. It has long been working with the agricultural industry on getting more farmers to embrace best-management practices.
Now, it is balking at calls for a TMDL and, on May 10, the U.S. EPA formally agreed it would not require the state agency to develop one for western Lake Erie.
That decision — much like the federal agency’s original decision to let the state off the hook on the impairment designation — is being challenged by the ELPC, with support from Toledo-based Advocates for a Clean Lake Erie.
The motion is among the newest in a case before U.S. District Judge James Carr.
In her filing, Madeline Fleisher, a senior ELPC attorney, said the U.S. EPA’s decision to go along with Ohio’s plan is “arbitrary, capricious, an abuse of discretion, and not in accordance with the Clean Water Act.”
The Ohio EPA did not respond to requests for comment, while a U.S. EPA spokesman said the federal agency has a policy against commenting on pending litigation.
Two U.S. Department of Justice attorneys representing the federal EPA told Judge Carr at a recent court hearing in Toledo it is their position that he cannot order a TMDL. They also said they believe the case should have been dismissed after the impairment designation was made.